Tim Kaine introduces bill to punish gun owners for failures in the background check system

In what is (hopefully) doomed to be an exercise in pointless, political posturing, Senator Tim Kaine (D – Virginia) has introduced yet another bill designed to discourage people from selling firearms to those legally entitled to purchase them. His bill, ironically named the “Responsible Transfer of Firearms Act,” seeks to make some things illegal which are already completely illegal and to criminalize the use of the National Instant Criminal Background Check System (NICS) if the system (not the private owner) makes a mistake. Should such a bill find its way through Congress it would be disturbing to say the least. (NRA-ILA)

Current law prohibits transferring a firearm to a person “knowing or having reasonable cause to believe” that the person falls into one of the federally prohibited categories. Appropriately, the prosecution has to prove the transferor knew or had reason to know of the recipient’s prohibited status. The law, of course, does not presume that everyone who seeks to acquire a firearm has a criminal record or intends to use the firearm for a criminal purpose, nor does it require those who transfer firearms to make this presumption.

Under Sen. Kaine’s bill, however, a person would be held strictly liable for transferring a firearm to a prohibited person, unless he or she could somehow demonstrate having “taken reasonable steps to determine that the recipient [was] not legally barred from possessing firearms or ammunition ….” Just what those steps are, however, is not specified in the bill. Thus, a person would be risking a federal felony with every firearm transfer, unless he or she adhered to an unwritten code of conduct that could shift with every circumstance.

The number of open questions which this proposed legislation leaves on the table are staggering. The language is vague, as NRA-ILA points out, leaving plenty of wiggle room for the government to prosecute someone selling a firearm over circumstances which are not yet spelled out. It also seems to ignore the fact that the number of legal firearms transfers which take place without an NICS background check are vanishingly low. (But the idea that they are going on all over the place is a popular myth among the gun grabbing set.) You can review those requirements in this set of guidelines from the ATF. (.pdf format) Most of what Kaine is talking about is already illegal and punishable by severe penalties.

The far more disturbing aspect, as the article points out, is that there is no exception for cases where the NICS system “fails.” It’s rare in the extreme, but the Dylan Roof case was one of those cases. Sometimes a request for a check will “time out” because of a paperwork error on the part of law enforcement and a sale may be allowed to go forward. What this means to the individual gun owner is that if you are looking to sell one of your firearms and go through the required background check process, a potential trap emerges. What if there was a similar clerical error in the records and the check came back as a go? You could complete the transaction, secure in the knowledge that you had identified the purchaser as a suitable customer. But if it later turned out that the police had failed to document something and NICS had given you a faulty approval, you would be on the hook under this new legislation.

Somehow I don’t think any of the original background check laws were intended to punish people for mistakes they themselves did not make. And yet that’s precisely what Kaine’s legislation could do. Is that justice? No… it’s actually just a way to wave an even larger sword over the necks of gun owners and frighten them into not selling their weapons. This is yet another bit of anti-gun posturing which should never even come up for a vote.